Nair v. Yagappan.
Present: Heame j.
NAIR v. YAGAPPAN.
519—M. C. Hatton, 284.
Criminal Procedure Code, s. 152 (3)—Summary trial by Magistrate of offencetoithout jurisdiction—Objection to trial by accused—Assumption ofjurisdiction by Magistrate—Judicial discretion wrongly exercised—Proceedings irregular.
Proceedings commenced against the accused on a written reportunder section 148 of the Criminal Procedure Code, and, after the evidenceof the complainant was recorded, a warrant was issued against theaccused on March .4, 1940. The accused appeared before the Magistratewho proceeded to try the case summarily as Magistrate. The com-plainant was recalled, his previous evidence was read and he was cross-examined by the accused. The trial was postponed to April 1, 1940,on which day the accused’s counsel pointed out to the court that the .offence was not one triable by the Magistrate; whereupon the Magistrateassumed jurisdiction as District Judge under section 152 (3) and proceededto try the accused. The complainant was recalled, his previous evidenceread over and eventually the accused was convicted. 1
1 2C. W. R. 2.» 3 A. C. S. X.
HE ARNE J.—Nair v. Yagappan.
Held, that the conviction was bad as it was based partly on evidencewhich was recorded by the Magistrate at a time when he was actingwithout jurisdiction.
The decision by a Magistrate who is also District Judge as to whetheror not an accused person should be tried summarily must be the resultof the exercise of a judicial discretion vested in him by law; and thatdiscretion must be exercised at the proper stage.
^^PPEAL from a conviction of the Magistrate of Hatton.
S.Vagiswara Aiyar (with him T. Kanapathipillai), for accused,appellant.
Nihal Gunesekera, C. C., for complainant, respondent.
Cur. adv. vult.
October 9, 1940. Hearne J.— ,
In M. C. Hatton, 284, proceedings were commenced against the accused bya written report under section 148 of the Criminal Procedure Code in whichhe was charged, under the latter portion of section 486, the Penal Code withan offence which was not triable by a Magistrate. This was on February10, 1940. On the same day the Magistrate recorded the evidence of thecomplainant in the absence of the accused and ordered a warrant to issuefor his arrest. He was before the Court on March 4 when the Magistrateproceeded to hold a trial in his capacity as Magistrate. The complainantwas recalled, his previous evidence was read, and he was cross-examinedat length by the accused’s Counsel. The 1st April was then fixed for thefurther hearing of the case. On the 1st April Counsel for the accusedpointed out to the Magistrate that he had acted without jurisdiction, thatthe offence was one which he was incompetent to try as Magistrate, andrequested him to take non-summary proceedings. In answer to thisthe Magistrate replied that he would assume jurisdiction as DistrictJudge under section 152, C. P. C,, to which Counsel for the accusedobjected. The Magistrate stated that the objection had been takentoo late. The complainant was recalled, the evidence he had previouslygiven on February 10, and March 4.was read again, he was cross-examinedand a trial by a Magistrate became a trial by a Judge. The accused wasconvicted and has now appealed.
The problem presented in this appeal of whether the Magistrate couldand should have acted as he did, after his initial mistake had been broughtto his notice, does not appear to be covered by authority. At any ratethe decisions of this Court cited by Counsel for the appellant have nobearing on it. In those cases1 the Magistrate began non-summaryproceedings and after a lapse of time assumed jurisdiction as a DistrictJudge. The principle that was laid down was that, where he does this,it should be done at an early stage. For the angle from which a com-mitting Magistrate views the material before him is not the same anglefrom which he views the same material as a trial Magistrate. Thatprinciple has no application in the present case. There was no differencein the point of view of the Magistrate as Magistrate and as District
1 4 N. L. R. 1 4 C. L. J. 162.
HEARNE J.—Nair v. Yagappan.
Judge. On the other hand while, when a Magistrate takes non-summaryproceedings and later assumes jurisdiction as a District Judge, he canproperly act on the evidence he has recorded as committing Magistrate(it must be read over, &c), it cannot I think be said here that asDistrict Judge, the Magistrate could have acted on evidence he hadimproperly recorded as Magistrate. This in fact is what he did.
It is to be noted that on the 4th March a formal trial, or what purportedto be a formal trial, was held; at that stage, in holding such trial, theMagistrate was acting without jurisdiction; all that he purported to doon that day was a nullity. And yet the evidence which had beenirregularly recorded was incorporated in the trial by the Magistrate,after he had assumed jurisdiction as District Judge. In part at least,therefore, the conviction of the accused was founded upon evidencewhich had been improperly recorded but which, nevertheless, becamepart and parcel of a fresh trial.
Apart from this, however, it is clear from the interpretation placed onsection 152 of the Criminal Procedure Code by this Court that the decisionby a Magistrate, “ being also a District Judge ”, as to whether or notan accused person should be tried summarily, must be the result of theexercise of a judicial discretion vested in him by law. On the 4th March,he did not exercise his discretion at all. That was the stage at which heshould properly have exercised it. He took summary proceedings for noreason other than that he had mistakenly assumed he had jurisdiction,while, on the 1st April, he would I think have been better advised to haveacceded to the application made by Counsel for the accused. It seems tome more desirable that, as it was necessary for the accused to be tried by aDistrict Judge, the trial should take place before a substantive Judge,rather than that, after the confusion that had been introduced into the caseand the original proceedings had reached an impasse, a fresh trial shouldbe started before the same Magistrate in a different capacity. In enteringon the trial at that stage it is possible he did so with preconceptionsbased on the evidence which had already been led. Difficulties willalways arise when the provisions of section 152 are invoked belatedly.In the determination of whether the accused is or not guilty he is, I feel,entitled to an inquiry that is more straightforward, uninterrupted andprecise. To add to his troubles, his Counsel did not appear on the lastday of trial and a postponement, rightly or wrongly (I do not proposeto enter into the merits of this matter) was refused.
The appeal is allowed and the case remitted for proceedings to be takende novo before another Magistrate. It has been pointed out to appellant’sCounsel that the new Magistrate may commit and that, whether he sodecides or not, his client may possibly receive a heavier sentence thanhas been passed upon him. But he tells me that he has warned theappellant in these terms.
Set aside. Case remitted.
NAIR v. YAGAPPAN